Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

MANNHEIMER, Judge.

Eric J. Holden appeals the superior court's dismissal of his petition for post-conviction relief. In his petition, Holden sought relief from his convictions for second-degree escape and fourth-degree assault. These convictions were based on an incident in 1994, when Holden evaded arrest for a parole violation and injured the officer who had come to arrest him.

We affirmed Holden's convictions on direct appeal in November 1999: Holden v. State, Alaska App. Memorandum Opinion No. 4148, (Nov. 10, 1999), 1999 WL 34002424. The litigation of Holden's appeal came to an end in May 2000, when the Alaska Supreme Court refused to accept Holden's late-filed petition for hearing. See "Order" dated May 24, 2000 in Holden v. State, Supreme Court File No. S-9577.

Under the terms of AS 12.72.020(a)(3)(A), if Holden wished to seek post-conviction relief from these convictions, he had to file his petition within one year from the date of the supreme court's order rejecting his petition for hearing. Holden did not file his petition until six years later (on May 2, 2006).

When the State asked the superior court to dismiss Holden's petition for post-conviction relief on the basis of its untimeliness, Holden responded that he should be exempt from the statutory time limit because his underlying criminal judgement was not simply flawed, but instead void in its entirety.

This claim (that the underlying criminal judgement was completely void) was based on Holden's assertion that his trial attorney actively worked to defeat Holden's right to testify in his own behalf at the trial — by urging the trial judge to find that Holden had waived his right to testify, when in fact Holden wished to testify. Holden argued that having an attorney who actively worked to defeat his right to testify was worse than having no attorney at all. And, based on this premise, Holden asked the superior court to rule that his underlying criminal judgement was void for lack of jurisdiction — just as if Holden had been brought to trial after asking for the assistance of counsel and having been wrongfully denied an attorney. See Brockway v. State, 37 P.3d 427, 430 (Alaska App. 2001).

The superior court rejected Holden's argument, concluded that Holden's petition for post-conviction relief was untimely, and dismissed the petition. Holden now appeals.

As we have explained, Holden's argument that his criminal judgement is completely void hinges on the underlying assertion that Holden was wrongfully denied his right to testify at his trial, and that this wrongful denial stemmed (at least in part) from the fact that his trial attorney improperly asked the trial judge to find that Holden had waived his right to testify.

This underlying assertion is the same claim that Holden raised in his direct appeal. A majority of this Court rejected Holden's claim and found that he had, indeed, knowingly and intelligently waived his right to testify. 1999 WL 34002424 at *8-9.

The present author dissented from the Court's decision. I concluded that "the defense attorney ... took a stance directly adverse to her client" when she urged the trial judge to find "that Holden had `waived' his right to testify", and I further concluded that the trial judge, when she adopted the defense attorney's position, "improperly denied Holden his constitutional right to testify in his own behalf". Id. at *13-14.

But a majority of this Court concluded otherwise, and the Alaska Supreme Court declined to review this Court's decision. Accordingly, Holden is barred from raising this claim again. This issue is now res judicata. See Brown v. State, 803 P.2d 887, 888-89 (Alaska App. 1990) (holding that the doctrine of res judicata applies to post-conviction relief actions, and that a defendant is barred from litigating a claim that has already been decided on direct appeal). And see AS 12.72.020(a)(2), which bars post-conviction relief based on "[a] claim [that] was ... raised in a direct appeal from the proceeding that resulted in the conviction".

Because Holden's underlying assertion of error was resolved adversely to him in his direct appeal of his criminal convictions, Holden can not relitigate that issue now — either as a ground for seeking post-conviction relief, or as a ground for arguing that his underlying judgement is void and that he should therefore receive an exemption from the applicable statute of limitations.

For this reason, the judgement of the superior court is AFFIRMED.